推进侦查法治化建设遏制刑讯逼供

刑讯逼供是为诸多国际法律文件与我国法律所明确禁止和坚决反对的行为。然而,我国刑事司法实务中刑讯逼供现象却禁而不绝。刑讯逼供现象的存在显示出我国侦查机制的状况落后,直接影响到人权保障与司法公正根本价值的实现。那么,为何这一现象久遭批判却难以杜绝?如何从根本上遏制刑讯逼供行为?我认为,必须深刻反思我们现行的侦查机制,切实推进我国的侦查法治化建设,完成从传统侦查制度向现代侦查制度     

浅析刑讯逼供

司法实践中,刑讯逼供时有发生,影响案件定罪处罚。如果有效遏制刑讯逼供,防止冤、假、错案的发生,是保障人权、营造良好法制社会的必然要求。本文对刑讯逼供这一司法现象进行的简单论述,从提高警察队伍素质,加强对侦查活动的监督,完善证据制度三个方面来论证。     

检察机关查办刑讯逼供案之侦查手段分析

刑讯逼供在我国司法实践中是长期以来的客观存在,检察机关作为国家的法律监督机关,对于司法工作人员刑讯逼供,侵犯公民人身权利的案件具有侦查权。在查办刑讯逼供案件时,怎样形成科学的侦查方式,排除"口供是证据之王"的传统侦查思维,是个值得探究的问题。本文从分析刑讯逼供案件查办的现状出发,提出了几点建议。     

刑讯逼供案件的热问题与冷思考

本文从刑讯逼供案件侦查的角度，对刑讯逼供类案件的特点、经常出现的问题、应当适用的原则和举证责任分配等问题提出了相关见解。文中认为刑讯逼供案件应当实行举证责任倒置，刑讯逼供案件不应适用疑罪从无原则，并对这些观点的原因进行了分析，希望能够加深对刑讯逼供这一罪名的认识，对这类案件的侦查、起诉和审判工作有所裨益。     

刑讯逼供的成本——收益构成浅析

成本—收益分析方法是经济学上常用的方法,是一种对投入和产出进行估算和衡量的方法。将该种方法引入到刑讯逼供的理论研究上,可以促使侦查办案人员在首次侦查讯问之前充分考虑到如果采取刑讯逼供将要付出什么样的代价,反之,会有什么样的收获,在充分衡量了代价和收获后做出正确的选择,从根本上杜绝刑讯逼供的发生,切实保障和尊重人权。     

论刑讯逼供的危害及对策

刑讯逼供,它有悖于诉讼文明与司法民主的现代性要求,为了维护司法公正,维护诉讼平等,维护程序正义,推进法治发展进程孤儿研究刑讯逼供的历史现状,寻找遏制刑讯逼供的对策.严刑峻法在中国有着悠久的历史.自新中国建国以来我国在人权保障方面做出了巨大努力,但司法实践中,犯罪嫌疑人的人权仍得不到保障,刑讯逼供现象在侦查过程中屡禁不止.从追求实体正义的角度看,很多情况下是通过刑讯逼供等暴力手段获得的证据,从追求程序正义的角度看,这是对人权的严重侵犯,严重的情况下可能构成犯罪.根据我国的司法现状,想要完全遏制刑讯逼供是不可能的,然而寻找解决对策减少延安的发生确实可行的.从实体和程序入手,转变思想和更新制度双管齐下,在提高司法者法律意识的前提下,加强监督力度.     

我国法庭治理刑讯逼供之反思与重构

刑讯逼供久禁不绝,侦查机关固然难辞其咎,但对侦查行为合法性的程序控制机制“失灵”也是易被忽视的重要原因之一。我国法庭对被告人提出的有关刑讯逼供的抗辩几乎一概置之不理,不仅使本已有限的司法审查权虚置,而且使被告人根本无法获得有效的司法救济。法庭在治理刑讯逼供问题上的“无能”表现,不仅有立法不周的原因,而且还有深层次的体制因素和思想根源———基于对这些制度化背景的认知与反思,构建程序性制裁制度,无疑是使法庭能够真正遏制刑讯逼供的最为现实的出路。     

刑讯逼供社会认知状况调查报告(下篇·警察卷)

通过问卷调查,了解警察群体对刑讯逼供的主观认知情况。调查结果显示,警察普遍能够正确掌握关于刑讯逼供的知识,但深层次心理上对刑讯逼供的宽容度仍然较高,因而易发生“知”与“意”割裂的情况;警察对已提出的刑讯逼供防治措施以及对短期内有效遏制刑讯逼供的信心明显不足;警察个人工作、学习等不同背景会对刑讯逼供之认知产生一定的影响。针对调查结果所显示的警察群体对于刑讯逼供的主观认知状况,建议在推进警察教育改革,加强警察队伍建设的同时,重视制度建设与基层工作,从多方面防止和遏制刑讯逼供的发生。     

遏制刑讯逼供的对策

刑讯逼供是反人权的酷刑表现,是我国传统法律文化的一大特征。文化的自然传承,使刑讯逼供成为必然。因此用侦查人员素质问题来解释刑讯逼供现象,或者仅仅呼吁人权保障,虽不无道理,却未免肤浅。刑事法治的基本要求是实行规则之治。遏止刑讯逼供,只能用制度改造法律文化,用制度保障犯罪嫌疑人、被告人人权。一、从建立健全制度入手,遏制警察使用刑讯逼供手段。在英美法系国家,如英国,建立了对非法取得证据的司法排除规则。法官如果发现控方提交的被告人有罪供述系警察用强制、压迫或其他非自愿的方法所获得的,就必须将该供述排除于法庭之外,而…     

侦查制度改革的法律文化思考

滥用侦查权力是学界提出的侦查制度中较为突出的问题,它在实践中表现为刑讯逼供、超期羁押等非法行使侦查权力的现象.对于如何改革,学界不乏一些激进的主张,其中以要求对警察权力进行严格控制和立即赋予嫌疑人沉默权为代表.通过运用法律文化为分析工具,可认为在中国目前的政治、经济、文化条件下,滥用侦查权力是局部的、技术层面的问题,可以通过系统内部不引起司法体制剧烈震动的措施逐步解决.而上述两种激进的主张在人、事、物等社会资源严重不足的情况下,都有虚置化的危险.     

Bhartṛhari and Maṇḍana on Avidyā

The concept of avidyā is one of the central categories in the Advaita of Śaṇkara and Maṇḍana. Shifting the focus from māyā, interpreted either as illusion or as the divine power, this concept brings ignorance to the forefront in describing duality and bondage. Although all Advaitins accept avidyā as a category, its scope and nature is interpreted in multiple ways. Key elements in Maṇḍana’s philosophy include the plurality of avidyā, individual selves as its substrate and the Brahman as its field (viṣaya), and the distinction in avidyā between non-apprehension and misapprehension. A closer investigation shows that Maṇḍana is directly influenced by Bhartṛhari’s linguistic non-dualism in developing the concept of avidyā. This study also compares other key constituents such as vivartta and pariṇāma that are relevant to the analysis of avidyā. As the concept of counter-image (pratibimba) emerges as a distinct stream of Advaita subsequent to Maṇḍana, this study also compares the application of pratibimba in the writings of Bhartṛhari and Maṇḍana.     

Unraveling the <Emphasis Type="Italic">Kāvyaprakāśa</Emphasis>: Jayadeva Pīyūṣavarṣa’s idiosyncratic sequence of topics in the <Emphasis Type="Italic">Candrāloka</Emphasis>

In his twelfth century alaṃkāraśāstra, the Candrāloka, Jayadeva Pīyūṣavarṣa reverses the sequence of topics found in Mammaṭa’s Kāvyapr-akāśa, an earlier and immensely popular work. With such a structural revisionism, Jayadeva asserts the autonomy of his own work and puts forth an ambitious critique of earlier approaches to literary analysis. Jayadeva investigates the technical and aesthetic components of poetry in the first part of the Candrāloka, prior to his formal semantic investigations in the latter half of the text, thus suggesting that aesthetic evaluations of poetry beneficially inform scientific investigations of language. Jayadeva’s organization of his chapters on the semantic operations, moreover, intimates that the study of suggestive and metaphoric functions of language clarifies our understanding of denotation, which is conventionally understood to be the primary and direct path of verbal designation.     

The Supreme Array Scripture: A New Interpretation of the Title “Gaṇḍavyūha-sūtra”

This article argues for a new interpretation of the Sanskrit compound gaṇḍa-vyūha as it is used in the common title of the Mahāyāna text the Gaṇḍavyūha-Sūtra.The author begins by providing a brief history of the sūtra’s appellations in Chinese and Tibetan sources. Next, the meanings of gaṇḍa (the problematic member of the compound) are explored. The author proposes that contemporary scholars have overlooked a meaning of gaṇḍa occurring in some compounds, wherein gaṇḍa can mean simply “great,” “big” or “massive.” This general sense is particularly common in the compound gaṇda-śaila (a “massive rock” or “boulder”) and is found in such texts as the Bhāgavata Purāṇa, the Harivaṃśa and the Harṣacarita. Following the discussion of Gaṇḍa, the author examines the term vyūha (“array”) as it is used in the Gaṇḍavyūha-sūtra. The article concludes with the suggestion that a more appropriate translation of the Gaṇḍavyūha-sūtra would be “The Supreme array Scripture.”     

Evaluation of six presumptive tests for blood, their specificity, sensitivity, and effect on high molecular-weight DNA

Luminol, leuchomalachite green, phenolphthalein, Hemastix, Hemident, and Bluestar are all used as presumptive tests for blood. In this study, the tests were subjected to dilute blood (from 1:10,000 to 1:10,000,000), many common household substance, and chemicals. Samples were tested for DNA to determine whether the presumptive tests damaged or destroyed DNA. The DNA loci tested were D2S1338 and D19S433. Leuchomalachite green had a sensitivity of 1:10,000, while the remaining tests were able to detect blood to a dilution of 1:100,000. Substances tested include saliva, semen, potato, tomato, tomato sauce, tomato sauce with meat, red onion, red kidney bean, horseradish, 0.1 M ascorbic acid, 5% bleach, 10% cupric sulfate, 10% ferric sulfate, and 10% nickel chloride. Of all the substances tested, not one of the household items reacted with every test; however, the chemicals did. DNA was recovered and amplified from luminol, phenolphthalein, Hemastix, and Bluestar, but not from leuchomalachite green or Hemident.     

Turning a Madhyamaka Trick: Reply to Huntington

Huntington (2007); argues that recent commentators (Robinson, 1957; Hayes, 1994; Tillemans, 1999; Garfield and Priest, 2002) err in attributing to Nāgārjuna and Candrakīrti a commitment to rationality and to the use of argument, and that these commentators do violence to the Madhyamaka project by using rational reconstruction in their interpretation of Nāgārjuna’s and Candrakīrti’s texts. Huntington argues instead that mādhyamikas reject reasoning, distrust logic and do not offer arguments. He also argues that interpreters ought to recuse themselves from argument in order to be faithful to these texts. I demonstrate that he is wrong in all respects: Nāgārjuna and Candrakīrti deploy arguments, take themselves to do so, and even if they did not, we would be wise to do so in commenting on their texts.     

Monks Who Have Sex: Pārājika Penance in Indian Buddhist Monasticisms

In the study of Buddhism it is commonly accepted that a monk or nun who commits a pārājika offence is permanently and irrevocably expelled from the Buddhist monastic order. This view is based primarily on readings of the Pāli Vinaya. With the exception of the Pāli Vinaya, however, all other extant Buddhist monastic law codes (Dharmaguptaka, Mahāsāṅghika, Mahīśāsaka, Sarvāstivāda and Mūlasarvāstivāda) contain detailed provisions for monks and nuns who commit pārājikas but nevertheless wish to remain within the saṅgha. These monastics are not expelled. Rather, they are granted a special status known as the śikṣādattaka. In this paper I explore the rules. concerning pārājika penance and the śikṣādattaka with specific regard to monastic celibacy. Given that five out of six extant law codes recognise this remarkable accommodation to the rule of celibacy, I argue that we must look to Vinayas other than the Pāli Vinaya if we are to arrive at a nuanced and representative view of Indian Buddhist monasticism.

Grant me chastity and continence, but not yet. Augustine of Hippo (354–430 C.E.)

     

Family breakdown and the ‘Welfare Child’ in 19th and 20th century Britain

This article traces new cycles of interest in past children as distinct from past childhood. Recent work highlighting that a conceptualisation of childhood existed even in periods with few written records closes the chapter begun by Philippe Ariès in 1960. Instead, there has been a new surge of interest in children on the edges of family life, as well as children in similarly liminal positions between the worlds of adults and children: runaways, delinquents and orphans. Several themes in the literature are identified, based on the conflicting ideas of ‘body/mind’, ‘victim/threat’, ‘needs/rights’. It is noted that researchers are using more imaginative ways of reaching the lived experience of children than the family or institutional framework, and that an increasing link is drawn between historical and modern concerns such as child abuse and the care of ‘at risk’ children.     

Vedic Language and Vaiṣṇava Theology:Madhva’s Use of Nirukta in his Ṛgbhāṣya

This article explores the way in which Madhva (1238–1317), the founder of the Dvaita Vedānta system of Hindu thought, reformulates the traditional exegetic practice of nirukta or “word derivation” to validate his pluralistic, hierarchical, and Vaiṣṇava reading of the Ṛgvedic hymns. Madhva’s Ṛgbhāṣya (RB) is conspicuous for its heavy reliance on and unique deployment of this exegetical tactic to validate several key features of his distinctive theology. These features include his belief in Viṣṇu’s unique possession of all perfect attributes (guṇaparipūrṇatva) and His related conveyability by all Vedic words (sarvaśabdavācyatva). Such an understanding of Vedic language invokes the basic nirukta presupposition that words are eternally affiliated with the meanings they convey. But it is also based onMadhva’s access to a lexicon entitled Vyāsa’s Nirukti with which his critics and perhaps even his commentators seem to be unfamiliar.While the precise status of this text is the subject of ongoing debate, Madhva’s possession of special insight into the sacred canon is established in part by his unique claim to be an avatāra of the wind god Vāyu and a direct disciple of Viṣṇu Himself in the form of Vyāsa₁. Thus, Madhva’s use of nirukta invokes his personal charisma to challenge not only conventional understandings of the hymns but traditional exegetic norms. Madhva’s provision of an alternative tradition of nirukta provoked sectarian debate throughout the Vijayanagara period over the extent to which one could innovate in established practices of reading the Veda. Articulating the Veda’s precise authority was a key feature of Brahmin debates during this period and reflects both the empire’s concern with promoting a shared religious ideology and the competition among rival Brahman sects for imperial patronage that this concern elicited. By looking at how two of Madhva’s most important commentators (the 14^th-century Jayatīrtha and the 17^th-century Rāghavendra) sought to defend his niruktis, this article will explore how notions of normative nirukta were articulated in response to Madhva’s deviations. At the same time, however, examining Madhva’s commentators’ defense of his niruktis also demonstrates the extent to which Madhva actually adhered to selected exegetic norms. This reveals that discomfort with Madhva’s particular methods for deriving words stemmed, in part, from a more general ambivalence towards this exegetical tactic whose inherent open-endedness threatened to undermine the fixity of the canon’s very substance: its language. Vyāsa’s Nirukti is one of several ”unknown sources” cited in Madhva’s commentaries whose exact status continues to be debated. Some scholars (e.g. Rao, Sharma, Siauve) maintain that these texts are part of a now lost Pāṅcarātra tradition that Madhva is attempting to preserve. This may be true for many of these citations. However, in addition to claiming to be both an avatāra of Vāyu and Viṣṇu-as-Vyāsa’s student, Madhva states in several places (e.g., VTN 42, RB 162) that the canon has suffered loss during transmission and that only Viṣṇu can reveal it in its entirety. Thus, it is possible that Madhva intends texts like Vyāsa’s Nirukti to be viewed as part of an ongoing and corrective revelation, a notion that is compatible with many Vaiṣṇava traditions (Halbfass, 1991: 4).     

The Mūlāvidyā Controversy Among Advaita Vedāntins: was Śaṅkara Himself Responsible?

The concept of avidyā or ignorance is central to the Advaita Vedāntic position of Śȧnkara. The post-Śaṅkara Advaitins wrote sub-commentaries on the original texts of Śaṅkara with the intention of strengthening his views. Over the passage of time the views of these sub-commentators of Śaṅkara came to be regarded as representing the doctrine of Advaita particularly with regard to the concept of avidyā. Swami Satchidanandendra Saraswati, a scholar-monk of Holenarsipur, challenged the accepted tradition through the publication of his work Mūlāvidyānirāsaḥ, particularly with regard to the avidyādoctrine. It was his contention that the post-Śaṅkara commentators brought their own innovations particularly on the nature of avidyā. This was the idea of mūlāvidyā or ‘root ignorance’, a positive entity which is the material cause of the phenomenal world. Saraswati argues that such an idea of mūlāvidyā is not to be found in the bhāṣyas (commentaries) of Śaṅkara and is foisted upon Śaṅkara. This paper attempts to show that although Śaṅkara may not have explicitly favoured such a view of mūlāvidyā, his lack of clarity on the nature of avidyā left enough scope for the post-Śaṅkara commentators to take such a position on avidyā.     

Student mentoring to enhance graduates’ employability potential

This paper considers whether the adoption of a subject-specific, classroom-based, voluntary extra-curricular student mentoring scheme could provide an effective mechanism and andragogic approach to enhance higher education students’ employability potential pre-graduation.Over the three-year pilot, 26 more advanced (second to fourth year) undergraduate students actively mentored nearly 400 first year undergraduate students during workshops delivered annually within forensic and policing focused courses. In total, 17 mentors anonymously completed online, post-scheme surveys. Survey data was quantitatively analysed to evaluate the scheme, establish which skills and attributes mentors had developed and investigate whether mentors could appropriately identify example skills within professional terminology used during employer recruitment. In addition, this paper reflects on the implementation of remote student mentoring during the COVID-19 pandemic and its adoption within a blended learning framework.The results from this research strongly support mentoring as an effective mechanism to develop undergraduate employability skills, significantly developing mentors’ self-confidence and self-efficacy in their interpersonal and communication skills. Although mentors were aware of university graduate attributes and thought they could evidence these with appropriate examples, in practice this was not necessarily the case. As a result, a framework is proposed to enable mentors to identify their skills and how they may align with competencies sought by relevant forensic and policing employers. However, other andragogic practices may need to be implemented to maximise the potential for successful graduate employment.